Grieving widow seeks slain Marin sheriff's deputy's pension

Should the widow of an off-duty Marin County sheriff's deputy slain while on leave in Petaluma last year be given a premium "service-connected" pension even though he wasn't on the job?

Pension trustees will meet Wednesday to reflect as attorneys on both sides of the issue publicly debate whether Cynthia Mathiesen, widow of 49-year-old sheriff's deputy Jim Mathiesen, is entitled to service-connected survivor benefits.

The stakes are big for the grieving widow, whose husband, a beloved, nine-year veteran assigned to the jail, was murdered a year ago by the ex-boyfriend of a friend.

Cynthia Mathiesen now receives a taxable survivor's pension of about $16,000 a year, but if the board determines the deputy was killed in the line of duty, the pension will jump to about $50,000 a year tax-free.

"You may be eligible for a service-connected disability if you can prove a real and measurable relationship between your disability and your employment," according to a pension application form.

The pension panel, with two members absent, considered the case behind closed doors last month, voting 5-2 to approve a service-connected pension. Two county employees who serve on the panel, county finance chief Roy Given and board president Maya Gladstern, dissented.

After an Independent Journal inquiry about the propriety of holding a closed session on a matter of public interest involving legal arguments — rather than a personnel matter involving medical issues — officials scrubbed the vote and will reconsider the matter in public at 9 a.m. Wednesday at pension headquarters, 1 McInnis Parkway.

Looking back, the application "should not have been considered by the board in closed session" under the Ralph M. Brown Act because a death benefit determination does not "affect a public employee's employment status," according to Ashley K. Dunning, a board lawyer present at the closed meeting.

The pension board chooses to meet privately on disability applications, citing a 2005 attorney general's interpretation of the Brown Act. The panel, which does not disclose information about ailments enabling disability benefits for employees, never has considered a survivor's death benefit case similar to Cynthia Mathiesen's.

Deputy Mathiesen was killed July 19, 2011 in an off-duty confrontation when he came to the aid of a friend in Petaluma, counseling her about an ex-boyfriend, Thomas Halloran of Novato. The 28-year-old Halloran, a former jail inmate who knew Mathiesen, appeared at the home and gunned down the deputy when he came outside. Halloran was then shot to death by the woman's brother.

Attorney Craig Dykman of San Rafael represents Cynthia Mathiesen, and Patrick Richardson, a county lawyer, represents the Marin County Employees Retirement Association, but not the pension board, in the case. Because the matter will be reconsidered in open session, documents filed by the two were made public.

Sheriff's Lt. Scott Anderson, responding to written questions posed by a pension official, wrote that deputy Mathiesen, who "only performed the duties related to the jail assignment," was not fulfilling sheriff department requirements for responding to calls for assistance from civilians, and was not acting on behalf of either the county or the department.

"Deputy Mathiesen was off duty as the time of the incident. ... At the time of his death Deputy Mathiesen was on paid leave due to an industrial injury, and had been informed that until he obtained medical clearance he could not perform the duties of a deputy sheriff," Lt. Andersen reported.

But a legal brief filed by Dykman argued that medical leave for an eye injury "did not suspend his peace officer status" under state code, which he said compels approval of disability benefits for Cyntha Mathiesen. Gov. Code 50921 says that any peace officer who who is injured or dies "by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators or protection or preservation of life of property, or the preservation of the peace anywhere in this state ... but is not at the time acting under the immediate direction of his or her employers, he, she or his or her dependents shall be accorded by his or her employer all the same benefits including the benefits of the workers' compensation law, which he, she or they would have received had that peace officer been acting under the immediate direction of his or her employer."

Mathiesen had reason to believe a crime was underway and that he was in imminent danger, along with others, and was thus authorized to act as a safety officer under law, Dykman asserted, adding it makes no difference that the deputy was off duty, on leave, out of uniform and out of Marin.

But Richardson disagreed, citing Lt. Anderson's assertion that the deputy was off duty and on a leave of absence under which he was told he could not perform a deputy sheriff's duties. "Mathiesen was not acting within the course and scope of his employment at the time of his death," Richardson argued.

Further, there is nothing to indicate the deputy was acting as a peace officer when he went out of the house unarmed to investigate a driveway alarm and was shot, Richardson said, adding he violated sheriff protocol by failing to call for backup and "was intoxicated at the time of his death," with a blood alcohol level of 0.076 percent. "Mathiesen would have been subject to discipline if he were found to be on duty" at the time, the attorney added.

Dykman called the alcohol situation irrelevant, saying state code favors providing benefits to peace officers unless there are overriding circumstances. "No such circumstances exist in this case," he added.